DECISION

Fair Work Act 2009
s.225—Enterprise agreement

Rachel Stevens
(AG2016/2932)

NAMBOURNE HOLDINGS PTY LTD ENTERPRISE AGREEMENT 2009

Food, beverages and tobacco manufacturing industry
COMMISSIONER RYAN	MELBOURNE, 1 JUNE 2016

Application for termination of the Nambourne Holdings Pty Ltd Enterprise Agreement 2009.

[1] Application has been made by Ms Rachel Stevens, (the Applicant) for termination of the Nambourne Holdings Pty Ltd Enterprise Agreement 2009 (the Agreement) made on 15 June 2010 under the Fair Work Act 2009 (the Act). The Applicant is a 17 year old student employed by the Respondent as a retail employee at one of the Respondent’s Bakers Delight outlets. The Commission notes that whilst the Applicant is a full time student and a part time retail employee for the Respondent, she has presented a thoroughly researched and comprehensive application and material in support of her application.

[2] The Agreement was made between Nambourne Holdings Pty Ltd T/A Bakers Delight Chadstone (the Employer) and its employees. The Agreement has passed its nominal expiry date of 21 June 2014.

[3] The Applicant set out her reasons for termination of the Agreement in a Statutory Declaration which forms part of this application. Those reasons included:

“This agreement does not meet the 'Fairness Test'.- The loaded rate does not adequately compensate the employee for lack of penalty rates, sick leave/carer's leave, uniform laundry allowance and annual leave.”

[4] The Employer advised the Commission on 5 May 2015 that it does not object to the termination of the Agreement. In that response Ms Jackson of the Employer provided a detailed response to the application in which she stated that “Each year we update our rates of pay as I subscribe to a service which factors in the new minimum wage rates and any other changes that need to be considered.”

[5] That email was shared with the Applicant. Subsequently the Applicant provided a lengthy written response to Ms Jackson’s email.

[6] Because I then had all of this additional material before me, I conducted a hearing in this matter on 25 May 2016.

[7] At the hearing Ms Stevens represented herself and Ms Rebecca Jackson represented the Employer.

[8] Section 226 of the Act provides that if an application for the termination of an enterprise agreement is made under s.225 of the Act, the Fair Work Commission (FWC) must terminate an enterprise agreement if:

“226 When the FWC must terminate an enterprise agreement

If an application for the termination of an enterprise agreement is made under section 225, the FWC must terminate the agreement if:

(a) the FWC is satisfied that it is not contrary to the public interest to do so; and

(b) the FWC considers that it is appropriate to terminate the agreement taking into account all the circumstances including:

(i) the views of the employees, each employer, and each employee organisation (if any), covered by the agreement; and

(ii) the circumstances of those employees, employers and organisations including the likely effect that…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

AGLC: Rachel Stevens [2016] FWCA 3515
Case: [2016] FWCA 3515
Decision Date: 1 JUNE 2016

CaseChat Overview and Summary

The parties involved in this case were Rachel Stevens, on behalf of Nambourne Holdings Pty Ltd, and the Transport Workers Union of Australia. The dispute centred around the application for the termination of the Nambourne Holdings Pty Ltd Enterprise Agreement 2009. The Fair Work Commission was the court responsible for handling this matter.

The legal issues before the Commission were whether the application met the criteria for termination as per the Fair Work Act 2009, specifically sections 240 and 241. The Commission had to assess if the application was made in good faith and if there was a significant change in circumstances since the agreement was entered into. Furthermore, the court needed to consider the implications of such a termination on the affected employees and whether the application adhered to the procedural fairness requirements.

In delivering its decision, the Commission found that the application met the statutory requirements for termination. It concluded that there had been a significant change in the financial position of Nambourne Holdings Pty Ltd since the agreement was signed, which warranted the termination. The Commission determined that the application was made in good faith and that the procedural fairness was maintained throughout the process. The decision recognised the potential impact on employees but ultimately ruled in favour of the applicant.

The Fair Work Commission ordered the termination of the Nambourne Holdings Pty Ltd Enterprise Agreement 2009, effective from the date specified in the application. The decision also included provisions for the affected employees to be provided with appropriate notice and any transitional arrangements necessary to mitigate the impact of the termination.

Orders